Study On The Effectiveness Of The Pre-purchase Commercial House Mortgage Notice Registration

In the transaction market of pre-purchased commercial housing,the registration of mortgage pre-notice is a supporting system with the rise of pre-purchase system of commercial housing in China.The buyer takes the pre-purchased commercial house as the collateral to loan to the bank to pay the remaining price of the house,while the developer as the guarantor assumes the guarantee responsibility for the loan of the buyer.When pre-purchased commercial housing is used as mortgage loan,the initial expectation of the transaction result is that the buyer obtains the ownership of the subject commercial housing,no matter the buyer,the developer or the bank.Secondly,the bank can obtain the mortgage of the subject commercial housing.Finally,the developer obtains the price of the subject commercial housing and relieves the guarantee liability.The bank issued the loan with the mortgage notice registration established by the loan contract,the purpose is to prevent financial risks.If the buyer fails to repay the loan on schedule during this period,which leads to breach of contract,can the bank only rely on the establishment of mortgage notice registration to pay priority to the proceeds from the sale and auction of the collateral.For a long time,laws and regulations have not clearly defined the nature and legal effect of the mortgage of pre-purchased commercial housing.When the courts at all levels hear the disputes over the mortgage loan of pre-purchased commercial housing,what rights do the creditor who have handled the mortgage registration of pre-purchased commercial housing enjoy.Whether the real right protection effect is obtained due to registration,or whether registration is only a kind of creditor’s right registration.Before the formal real estate mortgage registration procedures are completed,the creditor has different understanding on the issue that the pre-purchased commercial housing only enjoys the right to expect the performance of the contract.The court can’t confirm whether the bank has the priority to be paid for the mortgaged property that has been registered with the mortgage notice.The main reason is that the registration of the mortgage notice is different from the registration of the mortgage right.It is a kind of nonreal right registration.The notice registration of mortgage is not the real establishment of mortgage.In the framework of property law,due to the lack of direct provisions on the registration effect of advance purchase commercial housing mortgage,it is also urgent to find its proper position in the property law system of our country.It has become a long-term problem for the banking industry to understand the nature of the mortgage and related registration of pre-purchased commercial housing vaguely,and the legal effect is unclear,which needs to be solved urgently.Therefore,this paper is divided into five parts to analyze the effectiveness of advance purchase commercial housing mortgage notice registration,summarize the problems reflected in judicial practice through combing typical cases,and finally put forward suggestions to improve the effectiveness of advance purchase commercial housing mortgage system.This paper is divided into four parts:The first part is an overview of mortgage notice registration system,starting with the concept of mortgage notice registration,and then analyzing its nature and three major effects.Finally,it analyzes the mortgage notice registration and other related systems,including the distinction between the mortgage registration and the mortgage registration of buildings under construction.The second part,first of all,is to sort out the general situation of the legislation of the current system of our country,including the legislative purpose and general situation of the mortgage notice registration system,such as the laws,departmental rules and local regulations on the prepurchase commercial house mortgage advance notice registration.Finally,it describes the implementation effect of mortgage notice registration system in recent years.The third part,through the analysis of three typical cases,analyzes whether the bank can only rely on the establishment of mortgage notice registration to pay priority to the proceeds from the sale and auction of collateral.According to the analysis of the cases,the paper summarizes the problems of the advance notice registration in the judicial practice.In the fourth part,some suggestions are put forwardIn the fourth part,based on the problems summarized in the judicial practice,the paper puts forward the corresponding suggestions to clarify the effectiveness of advance notice registration of commercial housing mortgage,which is helpful to fundamentally solve such disputes.All in all,facing the current situation of confusion in judicial practice,legislators should unify the application of law and improve the interpretation of law as soon as possible.This kind of dispute case is related to the social financial order and people’s life.When dealing with this kind of case,the judge should pay more attention to the unity of legal effect and social effect,so as to achieve the balance of interests among banks,buyers and developers.Finally,it will help to reduce the incidence of such disputes in social life,so as to promote the orderly and stable development of the commercial housing financial market.